Tuesday, September 10, 2013

file 498A 506 etc, take case to CBI and then quash it because MOOLAH received !! if this isn't mockery of justice and misuse of law, what is?


file 498A 506 etc, take case to CBI and then quash it because MOOLAH received !! if this isn't mockery what is?
   
Notes
******************
* on the earlier blog post we had blogged a case and this is the sequel !!
   
In that bog we said 
*****************************
* Wife files various cases (as per Judgement below !!) ; She starts with a 498a, 506 on husband, sis in law and sister in law's husband ; husband and sis in law seem to have been arrested etc , one gathers from the case below ; now wife goes on to make further allegations against the POLICE !! ; she wants the case to be transferred to CBI !! and the honourable court is kind enough to transfer case to CBI !!!!! http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 
   
Now
************************
* The same wife wants the case to be quashed because she got the MOOLAH 
* The CBI advocate is kicking and screaming ....but well.... case quashed 
   

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE 
******************************************************************
   

ORISSA HIGH COURT
SUBASH CHANDRA MISHRA VS THE REPUBLIC OF INDIA AND ANR. ON 4 DECEMBER, 2000
Equivalent citations: 2001 CriLJ 876, 2001 I OLR 1
   
Author: B Das
Bench: B Das
   
JUDGMENT
   
B.P. Das, J.
   
1. This revision application is directed against the order dated 3.5.2000 passed by the Addl. Chief Judicial Magistrate, C.B.I., Bhubaneswar. in S.P.E. Case No. 4 of 1997 rejecting petitioner's application to discharge him from the charges framed against him Under Sections 498A and 506, IPC read with Section 4 of the Dowry Prohibition Act.
   
2. The petitioner challenges the impugned order on the ground that the charge-sheet so submitted and the materials presented before the Court. if taken in their entirety, would go to show that no case has been made out against the petitioner and the allegation of the prosecution is inherently improbable. In this case, notice having been issued on 12.7.2000, Shri Sanjit Mohanty entered appearance on behalf of the opposite party-C.B.I. Thereafter on 23.8.2000 Smt. Anjana Mishra, the informant and the wife of the accused- petitioner, filed a petition for intervention (Misc. Case No. 685 of 2000) which was allowed on 19.9.2000 and she has been impleaded as opposite party No. 2. On the same day a joint application was also filed being sworn to by both the petitioner and his wife, Smt. Anjana Mishra, with a prayer to quash the proceeding initiated in S.P.E. Case No. 4 of 1997 to which a counter affidavit has also been filed on behalf of the C.B.I. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 
   
3. It is profitable to state here the brief facts ultimately leading to this revision application.
   
An FIR was lodged by Smt. Anjana Mishra on 29.5.1997 against the petitioner alleging demand of dowry and torture, which was registered as Bidunasi P.S. Case No. 64 of 1997, and the then D.I.G., Central-Range, took up the investigation. A writ petition was filed by the present petitioner being OJC No. 8296 of 1997 with a prayer to change the hands of the investigation but ultimately this Court entrusted the investigation of the case to the C.B.I. Though initially allegations were made against Smt. Rajalaxmi Mishra alias Jyoti Mishra (brother's wife of the petitioner) and Shri Biswanath Hota (sister's husband of the petitioner), after investigation. the C.B.I, filed charge-sheet only against the petitioner Under Sections 506 and 498A, IPC read with Section 4 of the Dowry Prohibition Act. The other persons so named in the FIR were not charge-sheeted. The petitioner filed an application before the trial Court to discharge him from the charges framed against him but the same was rejected.
   
4. The grounds taken and prayer made in the aforesaid joint petition so filed by Smt. Anjana Mishra and the petitioner-Subas Chandra Mishra in the present application are as follows :
   
"(i) That the petitioner is the husband of the opposite party No. 2 and the marriage was solemnized at Cuttack in accordance of Hindu Law on 25th of Feb' 87.
   
(ii) That the opposite party No. 2 lodged a FIR against the petitioner and others which was registered as Bidanasi P.S. Case No. 64 of 1997 Under Sections 498A, 307, 323, 506 and Section 4 of the D.P. Act.
   
(iii) That ultimately the investigation was transferred to C.B.I. by the order of the Hon'ble High Court. Subsequently the C.B.I. filed charge-sheet against the petitioner Under Sections 498A. 506. IPC and Under Section 4 of the D.P. Act in SPE Case No. 4 of 1997.
   
(iv) That the petitioner has filed the aforementioned case to quash the charge framed against him. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 
   
(v) That the petitioner filed divorce suit 189 of '96 in the Court of Civil Judge, Senior Division, Sambalpur, which was subsequently transferred to the Court of Ld. Judge, Family Court and has been numbered as CP 90 of 1999 and is now pending in the same Court.
   
(vi) That on the intervention of gentlemen and well wishers of the parties, the petitioner and the opposite party No. 2 have settled their disputes on the following terms and conditions :
   
a. The petitioner withdraws all allegation made against the opposite party No. 2 in the Divorce Suit or in any other case and similarly opposite party No. 2 withdraws all allegation made in the criminal case (SPE 4 of 1997) in the divorce case and in any other case. Both the petitioner and the opposite party No. 2 agree and undertake to not to file any case or raise any litigation against he other or aganist their family members/relations.
   
b. The marriage between the petitioner and the opposite party No. 2 has irretrievably failed and thus there is no chance of their reunion. They have therefore agreed to end their marital relationship for good by a decree of divorce to be passed in CP Case No. 90/99 pending in the Family Court, Cuttack. The petitioner and opposite party No. 2 have filed similar application to that effect before the learned Judge. Family Court, Cuttack.
   
c. That the petitioner Subash Chandra Mishra shall pay Rs. 4,80,000.00 (Four Lakh Eighty Thousand) only to Smt. Anjana Mishra, opposite party No. 2 in the shape of account payee bank draft payable at Bhubaneswar towards full and final settlement towards permanent alimony and maintenance and the wife Anjana Mishra shall have no further claim whatsoever against the petitioner.
   
d. That the account payee demand draft of Rs. 4.8 lakh (Rupees four lakh and eighty thousand) only shall be delivered by the petitioner Subash Chandra Mishra through his Advocate Sri B.P.Ray in the Hon'ble Court, to Sri Pratap Das, Advocate for Smt. Anjana Mishra on the date of the final order of this Court quashing the proceeding.
   
e. That opposite party No. 2 shall have the right to visit her children namely Nisith and Nihit in the school premises twice in a month for one hour after the school hour wherever they will pursue their studies.
   
f. That the opposite party No. 2 shall intimate her visit to school to meet her children both to Sri Subash Chandra Mishra and the Principal of the School in writing. The custody of the children shall remain with the father Sri Subash Chandra Mishra.
   
g. That the opposite party No. 2 has already received gold ornaments and various other articles in pursuance of an order of the Hon' ble High Court. No other properties remained to be returned to the opposite party No. 2. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 
   
h. That when the petitioner and the opposite party No. 2 have settled their differences, no useful purpose will be served by continuing the Criminal Case i.e. SPE 4 of 1997 and the Divorce Suit. All the offences in the said criminal case being not compoundable, the petitioner and the opposite party No. 2 have therefore moved the Hon'ble Court for quashing the criminal proceeding bearing No. SPE 4/97."
   
5. On the aforesaid grounds both the petitioner and opposite party No. 2 prayed the following : http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 
   
"In the facts and circumstances of the case, the Hon'ble Court may graciously be pleased to allow this petition and quash the prosecution and proceeding in SPE 4 of 1997 pending in the Court of Additional CJM, Bhubaneswar and pass an order directing the Family Court to decree for Divorce in CP Case No. 90/99 in terms of petition filed before the learned Court and also pass such further order as this Court will deem fit and proper and for this act of your kindness the parties shall as duty bound shall ever pray."
   
6. The C.B.I. has filed a counter affidavit to the aforesaid joint application and Shri Sanjit Mohanty, learned counsel for the C.B.I., vehemently resisted the prayer to quash the proceeding on the ground that the inherent power Under Section 482, Cr.P.C. cannot be invoked by this Court on the ground that the parties have settled their differences; arrived at a compromise and no useful purpose would be served in continuing the criminal proceeding and further stated that if such ground would be allowed to be accepted then the same would amount to compounding a non-compoundable offence as the offence Under Section 498A. IPC is a non-compoundable one Under Sections 320 (1) and (2) of the Cr.P.C. The learned counsel for the petitioner draws my attention to an order dtd. 11.2.2000 passed by the apex Court in Special Leave Appeal (Civil) No. 12303/1998 (Nathan Raul v. Subhra Raul) relying upon which this Court passed the order on the joint application of both the parties. This Court in its order dated 21.6.2000 quashed the criminal proceeding so initiated in G.R.Case No. 302 of 1995 for the offence Under Sections 307/506/406/34, IPC read with Section 4 of the Dowry Prohibition Act. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 
   
7. In this regard it is worthwhile to look at the decision of this Court reported in (1998) 15 OCR 449 (Raj Kishore Behera and Ors. v. State of Orissa and Anr.) wherein it was held that where the husband and the wife in spite of some previous misunderstanding intend to stay together, it should be the duty of the Court to encourage such rapprochement and allow them to live as husband and wife, rather than to disrupt the family prosperity by forcing the wife to pursue a criminal proceeding on the facile nay, fatuous plea that the offence alleged is not compoundable. The same view was taken in the decision reported in (1998) 15 OCR 587 (Chandra Sekhar Senapati v. Suneeta Senapati and Anr.). This is also a case where the offence committed was Under Section 498A. IPC and the husband and the wife wanted to live as married couple. It was held that it would be travesty of justice if the criminal proceeding is allowed to continue merely because Section 498A. IPC is not compoundable. In the case at hand from the affidavit filed by both the parties, it transpires that there is no chance of re-union and they have agreed to end their marital relationship for which the proceeding for a decree for divorce is pending before the Family Court. It also appears from the grounds stated in the aforesaid affidavit that they have reached at certain terms and have also wanted to lead a fresh life of their own. Basing on the aforesaid background of facts, learned counsel for the petitioner submits that interest of justice will be best served if both the parties are allowed to stay in peace without being bothered by the criminal proceeding. This aspect was taken into consideration by this Court in Criminal Misc. Case No. 4828 of 1997 (Sujata Mohanty v. Debabrata Mohanty and Ors.). Relying on the aforesaid decision, this Court has dealt with a matter in Criminal Misc. Case No. 5614 of 1999 (Susanta Kumar Choudhury and Ors. v. State of Orissa and Anr.). In a similar situation while dealing with an application Under Section 482. Cr.P.C. being Crl. Misc. Case No. 1361 of 2000 (Bibekananda Das and Ors. v. Puspanjali Das and Ors.), this Court accepted the joint petition of the husband and wife where they settled their dispute amicably on certain terms and conditions and preferred to be separated, and allowed the application and quashed the proceeding so initiated for the offence Under Sections 498A/323/34, 1PC.
   
8. Considering all these aspects as well as looking into the terms and conditions so set-forth in the joint affidavit which shall form a part of this order and the fact that the criminal proceeding should not be construed as an instrument of oppression rather it should be considered as means of achieving social justice and harmony, particularly when both the husband and the wife want to live separately and put an end to the marital ties and do not want to proceed further with the criminal case, and want to end the Divorce Suit pending before the Family Court with consent on the aforesaid terms, it would be proper to allow the prayer of the parties. It may be noted here that this view of mine gets support from two decisions of this Court in 1998 (II) OLR 650 (name withheld v. State of Orissa) and 1999(II) OLR 163 (Mohamed Hassan v. Asraf Allikhan) 

Accordingly, the proceeding in SPE No. 4 of 1997 pending on the file of learned Addl. C.J.M., C.B.I., Bhubaneswar is hereby quashed.
   
9. The Criminal Revision and Misc. Case No. 686 of 2000 are disposed of accordingly. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 
   




*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist